Tim Hayward - Justice, Property and the Environment

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Social and Legal Perspectives

Edited by
Tim Hayward
University of Edinburgh
John O'Neill
Lancaster University

First published 1997 by Ashgate Publishing

Reissued 2018 by Routledge
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Copyright Tim Hayward and John ONeill 1997

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A Library of Congress record exists under LC control number: 97074449

ISBN 13: 978-1-138-32276-9 (hbk)
ISBN 13: 978-0-429-45180-5 (ebk)

We would like to thank Pat FitzGerald, Bob Brecher, Liz Kingdom and Sarah Markham for all their support and assistance in producing this volume. An earlier version of 'The Merchandising of Biodiversity' by Joan MartinezAlier was published in Capitalism, Nature and Socialism and is published with the permission of Guildford Press

Tim Hayward

Environmental problems are also social problems, both in their causes and their effects. Environmental degradation is being brought about by socially organised practices, and it has generally been allowed to occur because those with the power of decision have deemed it a necessary and acceptable sacrifice justified by the benefits the practices bring. Yet there is now growing concern about whether the benefits really do always justify the damage incurred: the question thus arises of whether a different set of normative priorities may be required as part of a solution to environmental problems. As this question receives increasing attention in international fora, however, a further dimension to it also becomes increasingly evident, namely: who benefits, and who bears the losses? The effects of environmental degradation are not necessarily experienced as costs by the people who cause - and most benefit - from them. Indeed, many of the most serious environmental problems are not evenly distributed but are felt most acutely by people who are also already subject to socioeconomic disadvantage. Thus, as is now widely recognised, and as the cleavage between rich and poor nations at the Rio Summit, for instance, testifies, questions of environmental policy are inextricably linked with questions of social justice.

As well as the question of an equitable distribution of environmental costs and benefits among living humans, questions of justice arise in relation to two other categories: do future generations of humans have rights to have their needs taken into account in present decision-making about the use and distribution of natural resources? Are there some non-human natural beings who should be considered not simply as resources, but as beings who themselves are entitled to just treatment?

In addition to these questions of normative principle, there are also questions concerning the most appropriate and effective policies for implementing social and environmental justice. There seems to be some potential for developing existing legal instruments to this end. For instance, laws of public and private liability can be so developed that stricter requirements are placed on those who cause environmental harms and greater possibilities for action are granted to those affected by them. There is also the possibility that the assignment of new environmental rights, or rights connected with genetic resources, for instance, help redress inequities in the distribution of resources.

Moreover, both the theory and application of justice in relation to the environment raise questions concerning property rights: on one view, the assignment of property rights in environmental goods or natural phenomena is a solution to the problem of the lack of incentive on identifiable parties to protect or conserve them; on another view, though, it is the interests of privateproperty owners themselves which most strongly conflict with environmental imperatives. Debate about this relates to the question of whether environmental harm occurs as a result of market failures, or is in fact due to the lack of regulation of market forces.

This is the range of complex and interrelated questions concerning justice, property and the environment which is explored in the present volume.

Since the publication ten years ago of the influential Brandt!and report, the three aims of securing environmental protection, equity in distribution and justice for future generations have been explicitly linked together in the idea of sustainability. What sustailiability means in practice, though, is a matter of some considerable debate, and different views reflect different theoretical understandings. The questions that arise at the level of normative theory are investigated by a number of contributors to this volume.

Ted Benton examines the linkages between the first two general aims of sustainability, focusing on the question of how well traditional conceptions of social justice are able to accommodate the new environmental concerns. He sets out the central issues involved by identifying some key features of green thought that represent a challenge to traditional conceptions of justice. One is the idea of natural limits: this renders problematic the usual assumption in theories of justice of merely moderate scarcity and so also calls into question principles of distributive justice which, like Rawls's difference principle, depend on indefinite economic growth. Benton points out that under condit ions of more severe scarcity, such principles have radically redistributive implications.